FCA Panel at 2025 ABA White Collar Conference Share Views on Cutting Edge Issues

The ABA White Collar Crime Conference is taking place this week in Miami, and the first day featured a wide-ranging discussion of False Claims Act (FCA) trends from a panel of experienced practitioners, including Arnold & Porter’s own Giselle Joffre, and in-house counsel at major corporations. Michael Granston (Deputy Assistant Attorney General, Commercial Litigation Branch, U.S. Department of Justice (DOJ)) was scheduled as a panelist, but withdrew (as did almost all other DOJ participants at this year’s conference).

The panel discussed several areas including DOJ’s Cyber Fraud Initiative, DOJ Cooperation Credit Policies, the constitutionality of the FCA’s qui tam provisions, the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo, as well as considerations about settlement discussions and the possible use of the FCA to support the Trump administration’s executive order suggesting potential FCA enforcement to target illegal diversity, equity and inclusion (DEI) programs.

Starting with a robust discussion of DOJ’s Cyber Fraud Initiative, the panel observed that, since the Initiative’s inception in October 2021, DOJ has sought to use the FCA to increase corporate awareness of cyber security risks, and has mostly succeeded in this endeavor. The panel discussed how investigations to date have focused on those government contractors whose contracts had express cyber security provisions that were allegedly breached, leading to sensitive data being exposed. In addition to obtaining large penalties, the panel noted that the Initiative had increased public awareness and empowered relators to report cyber breaches. The panel also observed that the Initiative has led to cooperative efforts within corporations among the business, compliance, legal, and IT departments to combat cybersecurity risks.

With respect to DOJ’s Cooperation Credit policy, the panel focused on the remediation considerations given to entities and individuals who voluntarily self-disclose violations. The panel noted the potential benefits of self-disclosure with respect to the FCA — i.e., the reduction in the FCA multiplier applied to damages — but anecdotal evidence suggested that few defendants engage in self-disclosure. The panel observed that the lack of clarity in the policy creates uncertainty and makes self-disclosure a fraught option. The panel also pointed out that self-disclosing to DOJ may not close off all paths to liability and would possibly open up a company to enforcement by other federal or state agencies.

Moving from policy to case law, the panel took the measure of the potentially groundbreaking district court decision in United States ex rel. Zafirov v. Florida Medical Associates LLC, which held that the FCA’s qui tam provisions are unconstitutional. The case is currently on appeal to the Eleventh Circuit, and the United States is expected to staunchly defend the constitutionality of the qui tam provisions. Although the panel highlighted the importance of the constitutional question and recommended that practitioners preserve the issue for appeal in their current matters, it also observed that DOJ is increasingly bringing its own cases based on data analysis — which would continue even if qui tam cases ceased to exist.

As for the 2024 Supreme Court decision in Loper Bright Enterprises v. Raimondo, overturning Chevron deference, the panel noted that Loper Bright “makes litigation strategy more complicated” because different district or circuit courts could interpret the same ambiguous statute differently. Those differences could leave a company simultaneously liable or not liable for a FCA violation depending on where a lawsuit is filed.

The panel also discussed how to approach settlement negotiations with the government in an FCA matter. After describing the factors the government typically takes into account in settlement discussions, the panel emphasized that outside counsel should not simply approach settlement without considering and discussing a possible trial strategy with a company client. In addition, defense counsel should consider that sometimes it may be in the interests of a business to go to trial as opposed to settling.

Finally, the panel addressed the threat of FCA liability from the Trump administration’s executive orders targeting DEI programs. Although noting the chilling effect from that threat, the panel also pointed out the challenges the government might have in bringing an FCA case. Those challenges include showing that a particular DEI program is illegal (when the government engaged in similar DEI efforts prior to this administration) and how the government could show the DEI efforts were truly material to the government’s payment decision (beyond the contractual certification now introduced under the executive order).

Stay tuned to Qui Notes as we’ll be closely tracking these predictions and other FCA developments!

© Arnold & Porter Kaye Scholer LLP 2025 All Rights Reserved. This Blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.